The state of Utah's fight against gay marriage took a hit Wednesday when a panel of judges from federal court of appeals ruled that the state's law forbidding same-sex couples to wed is unconstitutional.
The loss at the U.S. District Court of Appeals for the 10th Circuit, in Denver, means that if Utah wants to continue its fight against gay marriage, it will have to take its case to the entire 10th Circuit court, or U.S. Supreme Court.
“From a human standpoint, the 10th Circuit as we all have believed from day one validated that the United States Constitution--the 14th Amendment-- applies to all of us with equal force no matter what your sexual orientation,” said Peggy Tomsic, an attorney for the plaintiffs.
A throng of news reporters gathered outside Tomsic’s Main Street office to hear her and her clients speak. As they exited the building, onlookers applauded.
The ruling, which was split 2-to-1, was stayed, meaning same-sex couples will not be allowed to marry until the case is withdrawn, or until a higher court can rule.
Utah's ban, known as Amendment 3, was struck down last December by U.S. District Judge Robert J. Shelby. The judge found that the law, approved by voters in 2004, violated due process and equal protection clause under the U.S. Constitution's 14th Amendment.
Because the state of Utah failed to ask Shelby to stay his ruling while it was appealed, same-sex couples began marrying immediately after the law fell. More than 1,000 same-sex couples wed before the U.S. Supreme Court issued an emergency stay, halting all marriages while the case was appealed.
At a news conference Wednesday, Gov. Gary Herbert pledged to continue fighting for Utah’s law. Though he didn’t say if the case would be appealed to the 10th Circuit or the Supreme Court, he indicated that his hope is that the high court can hear the case as soon as possible.
“I think all people on all sides of this issue should want it to get decided by the Supreme Court as soon as possible and bring some certainty—some finality—to this, which is what I think all people on all sides of the issue should want,” he said. “That’s certainly what I want.”
If the case is appealed to the entire 10th Circuit, Tomsic said it would delay things “considerably.”
She said Utah has the chance to end the “chaos” surrounding same-sex marriage right now by simply not filing an appeal.
“If they want to end this chaos, they need to not appeal this decision,” she said. “And if they decide they’re going to, they need to go straight up to the United States Supreme Court. …”
Herbert said failing to appeal would be like halting a sporting event before it was finished.
“This was a 2-1 decision,” he said. “So at least a judge agrees with the state’s decision and you can’t stop in the middle; you’ve got to play to the final buzzer and that’s the Supreme Court. That’s what the people of Utah would expect on all sides of the issue.”
The Church of Jesus Christ of Latter Day Saints commented on the ruling, saying it has been “consistent in its support of marriage between a man and a woman,” but that it also believes all people should be treated with respect.
“In anticipation that the case will be brought before the U.S. Supreme Court, it is our hope that the nation’s highest court will uphold traditional marriage,” the church’s statement said.
Wednesday's ruling marked the first time a federal appeals court has taken a stance on the issue--a historic undertone not missed by the judges, who wrote that the question before them, so far untested, was: "May a state of the Union constitutionally deny a citizen the benefit or protection of the laws of the state based solely upon the sex of the person that citizen chooses to marry?"
The answer to this question is brisk: "Having heard and carefully considered the argument of the litigants, we conclude that, consistent with the United States Constitution, the state of Utah may not do so. We hold that the Fourteenth Amendment protects the fundamental right to marry, establish a family, raise children, and enjoy the full protection of a state's marital laws. A state may not deny the issuance of a marriage license to two persons, or refuse to recognize their marriage, based solely upon the sex of the persons in the marriage union."
In the wake of Shelby's ruling, Utah leaders have spent the past six months attempting to block the same-sex couples who wed from receiving the same state benefits as their married heterosexual counterparts.
Utah Atttorney General Sean Reyes hired private attorney Gene C. Schaerr to assist with the appeal before the 10th Circuit. Schaerr agreed to cap his legal fee at $200,000. A pair of lawyers he chose to aid him each received $50,000.
Herbert pledged to spend whatever it takes to reach the Supreme Court. Until it does, he said, Utahns won’t know the “answer to the question” of whether the state’s law forbidding gays to marry violates the U.S. Constitution.
He said “whatever the cost of doing that is, I think we can figure that out in our budget. I don’t think that’s going to be a major issue at all.”
Wherever the case--pegged by many people as a pioneering civil rights case--ends up, Tomsic said she and her clients are ready.
“We are absolutely ready psychologically, legally and with our heart and souls ready,” she said. “I want the 10th Circuit decision to stand and equality to be accessible to everyone today.”